The Supreme Court has reserved its judgment on an appeal against Alan Shatter’s successful challenge to a report on the his handling of complaints of the Garda whistleblower Sgt Maurice McCabe.
The appeal by barrister Sean Guerin is against a Court of Appeal decision that “seriously damaging conclusions” in his report were reached in breach of Mr Shatter’s rights to fair procedures and natural and constitutional justice.
The appeal court declined to quash the disputed sections, saying that was a matter for negotiation between Mr Shatter and the government that commissioned the report.
The report was given to then Taoiseach Enda Kenny in May 2014 who later published it. Mr Shatter resigned after the Taoiseach said he could not express confidence in the then Minister.
Mr Shatter was in court for the one day appeal hearing on Thursday. Mr Justice Donal O’Donnell, presiding over the five judge court, said it was reserving judgment.
In arguments for Mr Guerin, Paul Gallagher SC argued Mr Shatter was not entitled to take proceedings against Mr Guerin over a “scoping exercise” report which involved no “conclusions”. The matter was non-justiciable, he submitted.
To allow any minister sue over a scoping report commissioned by government would be a “recipe for mayhem” concerning how government operates, counsel said. A government would face “significant difficulties” if someone asked by it to produce a report, sometimes within a very short period of time on a matter of urgency and importance, could be later subject to judicial review.
There are daily instances in government where civil servants at different levels are asked to provide information to government which will “invariably contain criticism of someone”.
The idea of such reports being subject to judicial review creates a “huge impediment” for the government and the court should consider the future effect on any person asked to produce such reports, he urged.
This was “first and foremost a political issue” and Mr Guerin, a private person, was asked by the government, then including Mr Shatter, to compile a report for the purpose of a political decision being made, whether to establish a commission of inquiry.
The fact the report was published and that Mr Shatter resigned did not alter the position, he submitted. All of this was part of a “political process” and what happened were “consequences of political decisions and political choices”.
Opposing the appeal, Paul Sreenan SC, for Mr Shatter, said his case involved a “simple claim” his good name was attacked in the report without his being given the “most basic” right of fair procedures, the right to be heard. It was not about some asserted right to remain as Minister, he said.
There was no appeal over the Court of Appeal’s descriptions of the criticisms of Mr Shatter in the report as “gravely damaging” to Mr Shatter’s good name, he said.
The issue for the court to decide was whether his client’s constitutional rights were impermissibly infringed in a manner that gave rise to a right, and a duty, on the court to intervene.
The report was a “formal” report by an eminent senior counsel, not a political exercise, he said.
It involved Mr Guerin interviewing witnesses but while Mr Guerin met Sgt McCabe four times over 19 hours, he had not met Mr Shatter. Mr Guerin could have sought a meeting with the then Minister or put the proposed criticism to him and sought his response but he had not done so and had not explained why, counsel said.
Even after the Court of Appeal ruling of November 2016, the report remained on the government’s website, counsel added.
